Reading of the Will —

You have all seen it in a movie, on TV, etc. ; the family gathers with the attorney who then reads the Will; revealing its contents or the first time. To the joy of some and the anger or disappointment of others. Not real life! In more than 43 years of practicing law, I have never experienced this. Usually, at the first appointment following the testator’s death, the Will is brought, reviewed and discussed. The one or ones who bring it already know what it says. In most cases, next comes the probate, which begins with filing the Will with the proper court along with an application to probate the Will and appoint an executor. Once filed, the Will becomes part of the public records, forever and always, and is available for anyone to read or obtain a copy, no restrictions. This is real life, but not exciting enough for a movie or TV.

What has to be proved to the court for probate of a Will?

1. That the Will is valid under state law and the law varies from state to state.

2. That the person who made the Will (the “Testator” or “Testatrix”) had testamentary capacity. That means that the maker (1) was aware of the” nature and extent of his or her estate”, i.e. what they owned when the Will was made, and (2) the “natural objects of their bounty”, i.e. they knew who their relatives, e.g. spouse, children, grandchildren, great-grandchildren, siblings, etc. were. This is not the same as contractual capacity which is a different, perhaps higher, standard.

What must be proved to successfully contest a Will?

1. The Will is not valid or has been revoked or amended, i.e. is not the last Will.

2. The testator/testatrix did not have testamentary capacity.

3. The testator/testatrix was forced or coerced or unduly influenced in making the Will.

Anyone can contest a Will, but it is very expensive and not an easy win. Many contests are filed, not with an expectation of winning, but to end in a settlement to cut the time and expense of completing the probate. Perhaps unfairly, the court may order that the costs of the contest be paid out of the estate, win or lose.

How can I avoid a contest of my Will?

Avoid probate! Plan for all of your assets to pass according to your designation without probating your Will. This can be accomplished in several ways:

a. Establish a so-called Living Trust and put all of your assets into it except those that can avoid probate under the following.

b. When possible, designate assets to pass to someone of your choice by beneficiary, pay-on-death or transfer-on-death designation. This can be accomplished with IRAs, 401ks, life insurance, annuities, and checking and savings accounts.

c. For motor vehicles and landed property, right of survivorship agreements can be used. The problem with this is that it requires that the asset be jointly owned. while this is normal with spouses, joint ownership with a child or other person will risk that the account be included in the probate estate of the joint owner or be caught-up in a law suit or subject to a claim. The major difficulty with probate avoidance is that, except with a Living Trust, it is often not possible to provide for all events, e.g. while it is usually easy to designate that a bank account to be paid to the survivor of spouses and then to one or more children at the death of both spouses (either at the same time or sequentially), it often is not possible, with banks and credit unions, to have the account or a share of it to be paid to the children of a deceased child or other complex planning. Most of the time, this can only be accomplished with a trust.